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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. MISSING
Regular Panel Decision

Harrison v. Texas Board of Pardons & Paroles

Mary Ann Harrison sued the Texas Board of Pardons and Paroles for the wrongful death of her daughter, who was murdered by a parolee, Jerry McFadden. Harrison alleged negligence due to the Board employees' misuse or non-use of the Field Services Procedural Manual, specifically their failure to contact McFadden's employer, which could have revealed his parole violations and prevented the murder. The Board was granted summary judgment on the grounds that the manual was not 'tangible personal property' within the meaning of the Texas Tort Claims Act. The appellate court affirmed the summary judgment, reasoning that the information contained in the manual is an intangible concept, and thus the state's sovereign immunity was not waived under the Act. The court concluded that allowing such a claim would effectively eliminate the tangible property requirement of the Act.

Summary JudgmentTort Claims ActSovereign ImmunityTangible Personal PropertyParole SupervisionWrongful DeathNegligenceProcedural ManualState LiabilityTexas Law
References
9
Case No. 13-05-559-CV
Regular Panel Decision
Feb 21, 2008

Kirk Wayne McBride, Sr. v. Texas Board of Pardons and Paroles

Kirk Wayne McBride, Sr., an incarcerated individual, appealed the dismissal of his claims by the trial court. McBride alleged violations of his due process rights by the Texas Board of Pardons and Paroles during his parole review hearing. The trial court dismissed his claims without prejudice, citing his failure to comply with chapter 14 of the Texas Civil Practice and Remedies Code, specifically the requirements for an affidavit of previous filings and a certified trust account statement. McBride filed a motion for a new trial, attempting to cure these defects. However, the appellate court found that his submitted affidavit still did not meet the detailed requirements of the statute, particularly regarding the dates of final orders for previously dismissed frivolous lawsuits. Consequently, the appellate court affirmed the trial court's judgment, finding no abuse of discretion in the dismissal.

Inmate litigationFrivolous lawsuitDue ProcessParole review hearingChapter 14 dismissalTexas Civil Practice and Remedies CodePro se litigantAbuse of discretionMotion for new trialAffidavit requirements
References
37
Case No. 03-08-00087-CV
Regular Panel Decision
Aug 13, 2008

Henry Chavez v. Texas Board of Pardons and Paroles

Henry Chavez, an inmate appearing pro se, appealed the dismissal of his mandamus suit against the Texas Board of Pardons and Paroles and the Texas Department of Criminal Justice. Chavez sought release to mandatory supervision, arguing that the legislative exclusion for aggravated sexual assault convictions violated his constitutional rights. The trial court dismissed his suit as frivolous under chapter 14 of the civil practice and remedies code. On appeal, Chavez argued due process violations due to lack of notice for the dismissal hearing, denial of a recorded hearing, and refusal to issue findings of fact and conclusions of law. The appellate court affirmed the dismissal, finding no abuse of discretion as chapter 14 does not mandate these procedural safeguards for inmate claims.

Inmate litigationPro se appealDismissal of suitFrivolous claimsDue process rightsMandamus petitionMandatory supervisionChapter 14 Civil Practice and Remedies CodeAbuse of discretion standardNotice of hearing
References
15
Case No. 2018 NY Slip Op 00504 [157 AD3d 1176]
Regular Panel Decision
Jan 25, 2018

Matter of Gainey v. Stanford

Petitioner, Curtis L. Gainey, initiated a CPLR article 78 proceeding to challenge the Board of Parole's determination revoking his parole and imposing a 24-month hold. Gainey, convicted of incest in 2001, was paroled in 2014 and subsequently charged with violating parole conditions for failing to participate in and pay for required sex offender treatment. An Administrative Law Judge and the Board of Parole sustained these charges. The Appellate Division, Third Department, confirmed the determination, finding substantial evidence that Gainey failed to comply with his parole conditions despite having the financial means and opportunities to do so. The court dismissed the petition, also noting that Gainey's challenge to the length of his time assessment became moot upon his re-release to parole supervision.

Parole revocationSex offender treatmentCPLR article 78Substantial evidenceParole violationAdministrative lawMootnessCredibility determinationAppellate reviewIncest conviction
References
12
Case No. MISSING
Regular Panel Decision

People ex rel. Johnson v. New York State Board of Parole

The petitioner, previously on parole after convictions for sodomy, rape, and robbery, faced parole revocation following allegations of new crimes and numerous parole violations. A hearing officer sustained 19 of 22 violations, leading to parole revocation. The petitioner's administrative appeal was superseded by an unannounced "Full Board Case Review" (FBCR) by the Board of Parole, which affirmed the revocation without providing the petitioner notice or an opportunity to be heard, effectively undermining his appeal rights. The Supreme Court dismissed the petitioner's subsequent habeas corpus application. The appellate court reversed, ruling that the FBCR procedure was an unauthorized violation of the petitioner's due process rights and statutory right to appeal, causing irreparable harm. The court also noted significant weaknesses in the identification evidence against the petitioner and strong alibi evidence, suggesting a high probability of reversal on the merits. Consequently, the court granted the petition, discharging the petitioner from custody and restoring him to parole status.

Parole revocationDue process violationHabeas corpus reliefEyewitness identificationAlibi defenseDNA evidencePolygraph evidenceAdministrative appealUnauthorized agency reviewPreponderance of evidence
References
15
Case No. 2016 NY Slip Op 07198 [144 AD3d 691]
Regular Panel Decision
Nov 02, 2016

Matter of Sellers v. Stanford

Khaliyq Sellers, convicted of first-degree assault, had his parole revoked by the New York State Board of Parole after violating release conditions at a drug treatment center and during detention at Rikers Island. The violations included making verbal threats to "blow up the place" and threatening to kill everyone at Rikers Island, among other non-compliant behaviors. Sellers initiated a CPLR article 78 proceeding, challenging the revocation on grounds of untimeliness and due process violations, which was transferred to the Appellate Division. The Appellate Division, Second Department, denied the petition and dismissed the proceeding on the merits, concluding that the Board's determination was supported by substantial evidence. The court specifically found that verbal threats constituted prohibited behavior under parole rule 8, without requiring physical conduct, and that the final parole revocation hearing was timely held.

Parole RevocationCPLR Article 78 ProceedingSubstantial Evidence ReviewDue Process RightsParole ViolationsVerbal ThreatsTimeliness of HearingAppellate DivisionAssault ConvictionCorrectional Facility Incident
References
21
Case No. 03-01-00400-CV
Regular Panel Decision
Apr 11, 2002

Richard Wallace Pearce and Jesse Ray Blann v. City of Round Rock Round Rock Development Review Board Frank Del Castillo, in His Capacity as Member of the Round Rock Development Review Board Terry Hagood, in His Capacity as Member of the Round Rock Development Review Board

Appellants Richard Wallace Pearce and Jesse Ray Blann appealed the district court's judgment affirming the Round Rock Development Review Board's denial of their permit applications for seven outdoor advertising structures. The core issue was whether the structures qualified as 'signs' and were entitled to non-conforming use status under the City's ordinance, which became effective February 27, 1997. The Court of Appeals held that four of the structures were 'signs' due to having a surface capable of displaying text, despite not yet having advertising affixed, and were therefore entitled to non-conforming use. The court reversed and remanded the Board's decisions regarding these four structures. However, it affirmed the district court's judgment for the remaining three structures, which lacked such a surface, and also upheld the constitutionality of the City's sign ordinance against a takings claim.

ZoningOutdoor AdvertisingNon-conforming UsePermit DenialExtraterritorial JurisdictionAbuse of DiscretionStatutory InterpretationMunicipal OrdinanceTexas Court of AppealsProperty Rights
References
30
Case No. 03-17-00357-CV
Regular Panel Decision
Nov 21, 2017

George Allibone, M.D. v. Scott Freshour, in His Official Capacity as the Interim Executive Director of the Texas Medical Board Juanita Garner, Investigator of the Texas Medical Board And the Texas Medical Board

George Allibone, M.D., appealed the denial of his petition for a protective order against an administrative subpoena issued by the Texas Medical Board. The subpoena sought patient medical and billing records for an investigation into complaints against Allibone. He contended the trial court erred by failing to issue findings of fact and conclusions of law and by abusing its discretion in finding the subpoena reasonable and relevant. The appellate court found Allibone waived his complaint regarding missing findings. It also concluded the trial court did not abuse its discretion, citing the Board's need for complete records for investigation and Allibone's failure to prove the unconstitutionality of the statute requiring compliance. The trial court's order was affirmed.

Medical Board InvestigationAdministrative SubpoenaPhysician RecordsConstitutional RightsDue ProcessJudicial Review of Agency ActionAbuse of DiscretionFourth AmendmentTexas LawProfessional Licensing
References
50
Case No. 03-06-00002-CV
Regular Panel Decision
Jul 20, 2007

Texas Court Reporters Certification Board and Michele Henricks, as Director of the Court Reporters Certification Board v. Esquire Deposition Services, L.L.C.

The Texas Court Reporters Certification Board (Board) initiated disciplinary proceedings against Esquire Deposition Services, L.L.C. (Esquire) for alleged violations concerning long-term volume discount arrangements for court reporting services. Esquire subsequently filed suit against the Board and its director, Michele Henricks, challenging the Board's statutory authority to regulate or prohibit such discounts and seeking declaratory and injunctive relief. The district court denied the Board's plea to the jurisdiction, prompting an appeal. The Court of Appeals held that the Board possesses exclusive jurisdiction over disciplinary claims and determined that Esquire's claims, which broadly questioned the Board's general authority over long-term discounts, were not ripe for judicial review as they depended on contingent facts and agency expertise. Consequently, the appellate court reversed the district court's order, dismissing Esquire's suit due to lack of jurisdiction.

Administrative LawJurisdictionPlea to the JurisdictionRipeness DoctrineExclusive JurisdictionStatutory InterpretationDeclaratory Judgment ActCourt Reporters Certification BoardCourt Reporting FirmsLong-term Volume Discounts
References
15
Case No. 2020 NY Slip Op 05204 [186 AD3d 1679]
Regular Panel Decision
Sep 30, 2020

Matter of Board of Mgrs. of Half Moon Bay Mar. Condominium v. Board of Directors of Half Moon Bay Homeowners Assn., Inc.

This case concerns a CPLR article 78 proceeding initiated by the Board of Managers of Half Moon Bay Marina Condominium and Maria Elena DiBella against the Board of Directors of Half Moon Bay Homeowners Association, Inc. The dispute arose over the voting rights of Marina directors on the HOA Board, which the HOA Board sought to restrict. The Supreme Court, Westchester County, ruled in favor of the petitioners, compelling the HOA Board to allow unrestricted voting. The Appellate Division affirmed this judgment, determining that the HOA's bylaws regarding voting rights were ambiguous. The court found that extrinsic evidence, including the HOA Board's historical practice, supported the interpretation that all directors had an unrestricted right to vote on all HOA matters.

Bylaws InterpretationVoting RightsCondominium LawHomeowners AssociationCPLR Article 78Contract InterpretationExtrinsic EvidenceBoard of DirectorsAppellate ReviewAmbiguity
References
11
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